Com. v. Estate of Belesky, L.

J. S33006/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ESTATE OF LITE BELESKY, : No. 2218 EDA 2012
:
Appellant :
Appeal from the Order Entered June 29, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0604741-2006
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 08, 2014
Appellant, the Estate of Lite Belesky (“the Estate”),1 appeals the order
enforcing a sentence of restitution by garnishing funds from a structured
settlement of which the deceased defendant below was a beneficiary.
Finding no error, we affirm.
The trial court’s opinion accurately related the factual and procedural
history:
On February 8, 2007, [the deceased] was
sentenced to 2 1/2 to 6 years incarceration, 8 years
consecutive probation, and restitution in the amount
of $168,319.03 after pleading guilty to theft by
deception and criminal conspiracy arising out of a
theft by deception scheme that [the deceased] and
his mother, Janet Belesky, perpetrated against the
complainant, 74 year old Jeanne Sherman, between
1
The defendant in this criminal case, Lite Belesky, died during the pendency
of this appeal, and the Estate was substituted to represent his interests.
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March 22, 2005 and February 22, 2006. In addition
to the sentence, as a condition, the sentencing judge
ordered that proceeds due [the deceased] from
previous litigation were to be garnished for
restitution, payable to the complainant or her estate
in the event of her demise. To date, according to
the motion, [the deceased] has paid $679.21 toward
his restitution. The last payment was made on
March 8, 2010 in the amount of $14.82. On
March 30, 2012, the Commonwealth filed a motion
for garnishment of [the deceased’s] $75,000
structured settlement payment through Genworth
Financial, Inc.
[The deceased] submitted a response
conceding that this Court has jurisdiction over
restitution, but, that because there is no statute
specific to this situation, civil law should govern. He
therefore argues that the garnishment of [the
deceased’s] settlement funds is prohibited by the
Structured Settlement Protection Act, 40 P.S.
§4003(a). The Commonwealth responded with a
memorandum of law opposing [the deceased’s]
interpretation and arguing that the criminal court has
jurisdiction over matters of restitution. On June 29,
2012, following a hearing, and upon consideration of
the submissions of both counsel, the record and case
law, the Court granted the Commonwealth's motion
and ordered that the $75,000.00 structured
settlement payment due [the deceased] be placed
into an escrow account pending appeal, instructing
that no deposits, withdrawals, transfers or
transactions other than interest accrual take place
without a written order from the Court. This appeal
followed.
Opinion, 12/31/12 at 1-2.
The Estate raises the following issues on appeal:
I. Is the [deceased] entitled to an arrest of
judgment with regard to the Restitution By
Garnishment Order where the Commonwealth
failed to prove entitlement to such an Order
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when the Commonwealth failed to prove that a
structured settlement is exempt from
garnishment; that a corpus emanating from a
Minor’s Compromise can be garnished; and
where there is a lack of jurisdiction to proceed
in a criminal courtroom?
II. Is the [deceased] entitled to an arrest of
judgment on the Order Directing Restitution
via Garnishment, where the Order is not
supported by any Pennsylvania statute or case
law, and where the existing statutory laws
would hold that such an Order is barred and
unlawful?
III. Is the [deceased] entitled to an arrest of
judgment and a quash of the garnishment
ordered as the Court had no legal authority to
order the garnishment to come from a fund
which merely reimbursed the [appellant] for
losses sustained?
The Estate’s brief at 3.
We begin our analysis with our standard of review:
“An appeal from an order of restitution based upon a
claim that a restitution is unsupported by the record
challenges the legality, rather than the discretionary
aspects, of sentencing.” [Commonwealth v.
Atanasio, 997 A.2d 1181 (Pa.Super.2010)], at 1183
( citing Commonwealth v. Redman, 864 A.2d 566,
569 (Pa.Super. 2004), appeal denied, 583 Pa. 661,
875 A.2d 1074 (2005)). “When we address the
legality of a sentence, our standard of review is
plenary and is limited to determining whether the
trial court erred as a matter of law.”
Commonwealth v. Pombo, 26 A.3d 1155
(Pa.Super. 2011) (citation omitted).
Commonwealth v. McKee, 38 A.3d 879, 881 (Pa.Super. 2012). Moreover,
claims that restitution was entered without authority or without jurisdiction
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likewise challenge the legality of the sentence. Commonwealth v.
Dietrich, 970 A.2d 1131, 1133 (Pa. 2009).
The Estate first challenges the jurisdiction of the trial court to enter an
order of garnishment. Essentially, it is arguing that the trial court, sitting as
a criminal court, was without authority to enter a civil remedy of
garnishment.
We disagree with the Estate’s underlying assumption that the court’s
action here constituted a civil garnishment; rather, it constituted the
enforcement of a criminal sentence of restitution. Garnishment was merely
the terminology chosen by the Commonwealth in its motion, and
subsequently employed by the trial court, undoubtedly because the action
was similar to the civil proceeding of garnishment. However, in reality, the
action of the trial court here was to order the seizure of the deceased’s
assets in order to satisfy the sentence of restitution. Our statutes clearly
authorize the criminal court to seize potential restitution assets:
(e) Preservation of assets subject to
restitution.--Upon application of the
Commonwealth, the court may enter a
restraining order or injunction, require the
execution of a satisfactory performance bond
or take any other action to preserve the
availability of property which may be necessary
to satisfy an anticipated restitution order under
this section:
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42 Pa.C.S.A. § 9728(e), in pertinent part.2
Simply stated, the trial court’s action was not a civil garnishment
proceeding, but simply a lawful seizure of restitution assets for which it had
full jurisdiction to undertake. As noted by the Commonwealth, “restitution
can only be enforced by the criminal court.” Commonwealth v. Pleger,
934 A.2d 715, 720 (Pa.Super. 2007).
The Estate next argues that this transfer of funds violates the
Structured Settlement Protection Act (“SSPA”), 40 P.S. §§ 4001-4009.
Specifically, it indicates those provisions of the SSPA that require a petition
by the payee of the structured settlement to transfer such funds and court
approval of such transfer.
First, the court’s action here does not qualify as a “transfer” as defined
under the SSPA:
“Transfer.” Any direct or indirect sale, assignment,
pledge, hypothecation or other form of alienation,
redirection or encumbrance made by a payee for
consideration, provided, however, that this shall not
apply to a blanket security agreement used to secure
a loan originating from a Federal or State chartered
lending institution. Any transfer made or agreed to
under this act shall be considered to be a consumer
transaction.
2
Although this statute is drafted in terms anticipating an award of
restitution, we find that it also supports the same preservation actions
following the award of restitution, as here.
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40 P.S. § 4002, in pertinent part. The transfer here was not for
consideration but, rather, was a seizure of assets. Thus, it is not a transfer
governed by the SSPA.
Second, the purpose of the SSPA clearly is to protect the injured
beneficiaries of structured settlements from being preyed upon by
unscrupulous parties who might try to obtain the beneficiary’s right to
payment by an offer of inadequate consideration. See In re Benninger,
357 B.R. 337, 351 (Bkrtcy.W.D.Pa. 2006). The SSPA was not intended to
protect the assets of convicted criminals from being seized to give restitution
to their injured victims.
Third, to the extent that the SSPA requires court approval of the
“transfer,” the court below specifically approved the seizure of these funds.
Next, the Estate claims that pursuant to Pa.R.C.P., Rule 3123.1,
42 Pa.C.S.A., it may claim an exemption from attachment of certain types of
property which includes accident and disability insurance.3 The Rules of Civil
Procedure have no authority whatsoever in a criminal proceeding. The
Estate’s argument is again predicated on the initial confusion caused by the
Commonwealth titling its original motion as one seeking garnishment. The
motion actually constituted a motion to seize restitution assets under
42 Pa.C.S.A. § 9728(e) and is a criminal rather than civil proceeding. The
3
The deceased’s structured settlement apparently arose out of an insurance
policy of which he was the beneficiary.
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Estate cannot rely upon a Rule of Civil Procedure to avoid the seizure of
restitution assets in a criminal proceeding.
Finally, the Estate baldly asserts that the assets cannot be seized
because they were compensatory damages intended to make the defendant
whole. The Estate cites to no case or statute to support a finding that
compensatory damages are not subject to seizure for restitution. “[W]aiver
of an issue results when an appellant fails to properly develop an issue or
cite to legal authority to support his contention in his appellate brief.”
Commonwealth v. Cox, 72 A.3d 719, 721 n.3 (Pa.Super. 2013).
Consequently, we regard this issue as waived.
Accordingly, having found no merit in the Estate’s arguments on
appeal, we will affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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